Can My Spouse Start Divorce Proceedings Outside The UK Against My Will?

Date: June 20th, 2018 - Written by: Brookman Solicitors

 

The short answer is yes, provided that:

  • Your spouse does so in a country that has the jurisdiction to deal with the divorce; and
  • Serves you with the divorce petition in the proper way

In many divorces more than one country will have potential jurisdiction. And in Europe at least, if your spouse starts proceedings first you will only be able to stop them in very rare circumstances.

 

Why Does The Country Of Divorce Matter?

The eventual outcome in relation to finances and arrangements for children can differ hugely depending on where your divorce case is heard. As a result there is often a big incentive for one party to issue proceedings in a country of their choice (assuming the criteria for divorcing there are met) without giving notice to the other. Consider the following:

  • The courts in England and Wales are traditionally recognised as being more generous to financially weaker spouses
  • Different jurisdictions adopt varying approaches to valuing and dividing pensions, trusts and businesses
  • The tax treatment of any settlement will differ from country to country
  • Some legal systems are cheaper to use and more efficient than others

 

Does The Country Your Spouse Is Starting Proceedings In Have Jurisdiction?

Your spouse can only issue proceedings in a country with jurisdiction. In the EU this means fulfilling the criteria set out in the Brussels II Convention. In England and Wales this depends on the concepts of domicile and habitual residence. In other European countries nationality is usually the determining factor.

If your spouse wishes to divorce in a country outside the EU the situation is not so clear-cut. He or she will have to satisfy the rules regarding jurisdiction for that particular country. And what if one party to the divorce objects to the choice of a non-EU country as the place to commence proceedings? Then the courts will have to engage in a delicate balancing exercise to decide the correct forum for the divorce. As we have illustrated above that decision could have far reaching consequences for both sides in terms of any final settlement.

The issue of jurisdiction is often complicated, particularly when a non-EU country is involved. At Brookman we are familiar with international jurisdiction rules and have represented clients divorcing in countries across the world. If you would like to discuss any of the points we have call us on +44 (0) 20 7430 8470.

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